Senators in both parties want drug-settlement ban out of approps bill

But generic drug makers say restricting the settlements would make challenging patents financially prohibitive because the brand-name companies prevail in court more than half the time.

Five Democrats from districts with a large drug industry presence say the inclusion of the so-called "pay-for-delay" ban is an antitrust matter that's outside the purview of the Appropriations Committee.

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The senators have "substantive concerns with the content of these provisions" that "can only be properly resolved through the regular order in the Senate," they wrote in a letter sent Thursday to Senate Majority Leader Harry Reid (D-Nev.) and Appropriations Chairman Daniel Inouye (D-Hawaii).

The inclusion of the provision in the Financial Services and General Government Appropriations bill "contradicts both the spirit and the letter of the Senate rules," the letter said. It was signed by Sens. Arlen Specter and Bob Casey of Pennsylvania, Frank Lautenberg (N.J.), Tom Carper (Del.) and Kay Hagan (N.C.).

The Democrats' letter follows a similar missive from four Senate Republicans last month.

"We believe that the reported bill gives excessive power over such settlements to the FTC — a power that the FTC has shown itself in the past to be unable to exercise in a responsible or economically rational manner — and that the bill would do serious violence to the Hatch-Waxman process for the market entry of generic drugs," the Republican senators write in a Sept. 17 letter to Minority Leader Mitch McConnell (R-Ky.) and Appropriations Committee ranking member Thad Cochran (R-Miss.).

The pay-for-delay provision cleared the Judiciary Committee a year ago but did not survive the health-reform negotiations. After it was added to the appropriations bill it barely survived a challenge from Specter (by a vote of 15-15) in July.

The Senate version is co-sponsored by Sens. Herb Kohl (D-Wis.) and Chuck Grassley (R-Iowa). The House passed the companion version as part of its Supplemental Appropriations Act in March.